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Sunday, July 29, 2007

Last Wednesday, the Federal Court handed down its judgment in the case of Latifah Mat Zin. Though the impact of the judgment on ‘hard’ or controversial cases like those of Lina Joy, Subashini and Moorthy is yet to be fully understood, it is apparent that the judgment goes a long way in helping us unravel the legal knots that have resulted in the injustices that those cases, and cases like it, serve to illustrate. It also provides us an insight into where we stand as a society 50 years into the life of this nation.

In the interests of full disclosure, it should be known that I appeared as counsel for Latifah Mat Zin.

This posting aims to explore the impact of the Latifah Mat Zin decision on the legal positions that resulted in the majority decisions of the Federal Court and Court of Appeal respectively in Lina Joy and Subashini, and also the many High Court decisions that have resulted in litigants being turned away in deference to the syariah courts.

For a more complete understanding, it will be necessary to restate basic principles and re-explore old ground. I ask for your indulgence in the interests of clarity.

The Supremacy Of The Constitution: Is Malaysia An Islamic State?

For some years now, civil society activists have been warning of an undermining of the Rule of Law through efforts aimed at securing official recognition of the purported supremacy of syariah law and the syariah legal system in Malaysia. Though the aspiration for a greater role for syariah law in the public life of Malaysians has had a place in Malaysia for many years, a strong commitment on the part of the Judiciary and the Executive to the Federal Constitution and constitutionalism had helped keep the aspiration in check.

Grounded as it was on recognition of the supremacy of the Federal Constitution and the secular status of public law, this commitment ensured the perpetuation of the multi-racial, multi-religious and pluralist Malaysia that had been the vision of those who set us on our course for freedom and a free life. It was understood then, and remains a truth now, that undue emphasis on race and religion would have a destabilizing effect on the nation. It would also result in discriminatory attitudes and practices that would undermine the national vision of an integrated and unified society.

The fact that from the outset the balance struck between the competing interests was a delicate one was not reflective of a precariousness or a doubt as to the value of the this vision. Rather, it reflected the understanding and sensitivity of those charged with the responsibility of laying down a firm foundation for this country to two basic truths. Firstly, that each and every Malayan, later Malaysian, was entitled to live his or her dream to the fullest. Secondly, that in order to do this all Malaysians had to be guaranteed the freedoms that would allow for this and the necessary diversity.

It is for this reason that upon Malaya achieving independence, a Federal Constitution that put in place a secular system of public law was entrenched as the supreme law of the nation. By public law it is meant the legal framework that puts and hold in place the system of governance and the underlying paradigm. By constitutional supremacy, it is meant that every action of the state or law would have to be tested against the Federal Constitution to ensure compliance. If the act or law were unconstitutional it would have no legal effect.

The use of the word ‘secular’ by our founding fathers was never intended to suggest an anti-religious or an anti-Islamic state of governance. Rather, it was intended to assure Malayans, later Malaysians, that Islam would not be made the basis of law and governmental action despite it being the religion of the Federation. Put another way, it was intended to reassure all Malaysians that in administering the country the Government would be persuaded only by good sense and the universal values applicable to all Malaysians. The syariah was never intended to be the basic law or benchmark against which actions or laws were to be tested.

The Federal Constitution however envisages that laws would be enacted to fulfill the personal law requirements of Muslims. It manifestly recognizes that the syariah would not be made the basic or supreme law. The Federal Constitution declared, and still declares, itself as the Supreme Law. Unlike the Constitution of Pakistan that entrenches the syariah as the basis of all law, the Federal Constitution does not accord the syariah law such status. For this reason, it is wholly incorrect to refer to Malaysia as an Islamic State.

This state of affairs was recognized by the then Supreme Court in 1988 in the case of Che Omar Che Soh which characterized our public law sphere as secular. The Court also observed that unless the Federal Constitution was amended to reflect the syariah law as the supreme or basic law, this would be the case.

The Federal Constitution has not been amended to reflect that position. Article 4(1) still declares the Federal Constitution as the Supreme Law.

Sunday, July 15, 2007

I am concerned about the arrest and remand of Nathaniel Tan. Media reports suggest that he has been arrested in connection with an offence under section 8 of the Official Secrets Act, or the OSA. If this is true, then the Government must take immediate steps to ensure that Nathaniel Tan is immediately released.

For this, it would be useful for us to get a grasp of what the OSA, and in particular section 8, concerns.

As it was originally drafted, the OSA was a law aimed at allowing the Federal and State governments to take measures to ensure that highly sensitive information pertaining to matters of national security could be maintained confidential. The objective was to allow those charged with the security of the country to keep such information away from those who would use this information adversely.

For this reason, as it was originally drafted the OSA allowed for the classification of a very narrow class of documents pertaining to military installations, military prisons and other matters related to state security.

The OSA was amended in 1987 to expand the scope of information that amounted to an ‘official secret’. Since then information so defined include information in the following categories:

Cabinet documents, records of decisions and deliberations including those of Cabinet committees;

State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees;

Documents concerning national security, defence and international relations.

any information and material relating to the 3 categories set out above and any other official document, information and material as may be classified as "Top Secret", "Secret", "Confidential" or "Restricted", as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public officer appointed

The government may add to the first three categories by simply gazetting the variations. This allows for additions outside parliamentary scrutiny and process.

Section 8 of the OSA is one of the main sections of the Act. It sets out offences against the Act in the widest terms. It would be best to reproduce the relevant parts here:

8. Wrongful communication, etc. of official secret.

(1) If any person having in his possession or control any official secret which -…(c) has been made or obtained in contravention of this Act;…does any of the following -

(iii) retains in his possession or control any such thing as aforesaid when he has no right to retain it, or when it is contrary to his duty to retain it, or fails to comply with all lawful directions issued by lawful authority with regard to the return or disposal thereof; or

he shall be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years.

(2) If any person receives any official secret or any secret official code word, countersign or password knowing or having reasonable ground to believe at the time when he receives it, that the official secret, code word, countersign or password is communicated to him in contravention of this Act, he shall, unless he proves that the communication to him of the official secret, code word, countersign or password was contrary to his desire, be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years.

As one can see, the provision puts almost any activist involved in efforts to improve socio-political conditions in Malaysia in a ‘damned if you do, and damned if you don’t’ place.

The OSA is unconstitutional. In its current form, it violates a range of fundamental liberties guaranteed by the Federal Constitution. Chief amongst these is the freedom of expression, and the associated freedom of information. Seen from the perspective of allowing arbitrary government, the OSA violates the equal protection and equal access to the law guarantees as well as undermining the fair and free elections underpinnings of our system of government.

The OSA in its current form allows for a government to administer this country covertly and in defiance of the accountability and transparency that is crucial to democratic process. This impacts on all our lives in more ways that we can begin to understand as the government is given a means to thwart legitimate public interest by the forced suppression of material and relevant information. The position taken by the government in connection with the disclosure of toll concession agreements illustrates this worrying trend.

The OSA as it is also violates international human rights norms and runs counter to representations made by our government at the international level about the state of play in this country where civil and political rights are concerned. Malaysia is a current member of the United Nations Human Rights Council. It must act in a manner consistent with its membership.

These are not my views alone. The OSA has been widely condemned (see here for a comprehensive analysis of the Act by Human Rights Watch).

In view of the above, short of repealing the OSA or amending it to neturalise the contraventions of constitutional guarantees and international human rights norms, no charge or charges should be made out against any person under the OSA. Such an act would run counter to the promises of transparency and accountability of the current administration under Abdullah Badawi.

The move against Nathaniel Tan is particularly worrying in light of indications in the media that the investigations are being carried out in connection with concerns about matters published in blogs. In a previous posting, I had explained how vital blogging is to nation building efforts.